On October 18, 2013, the Court of Appeal of Ontario upheld the dismissal of a $150-million claim for damages by three former medical residents against the University of Ottawa.1 The students alleged the university had improperly evaluated their academic performance, resulting in their dismissal or delayed promotion. The Court of Appeal agreed with the motion judge that the civil suit was an abuse of process.
The Residents' Action decision confirms that courts have the discretion to dismiss lawsuits that indirectly attempt to challenge academic decisions. It also illustrates the high price students may pay for attempting such proceedings.
Drs. AlGhaithy, Aba-Alkhail and Alsaigh were medical residents in the neurosurgery or cardiac surgery programs at the University of Ottawa. Drs. Aba-Alkhail and Alsaigh struggled academically and were not promoted with their peers. Dr. AlGhaithy was dismissed from the university for violating the Faculty of Medicine's standard of professionalism.
Each of the residents appealed these decisions unsuccessfully through the university's internal appeal processes. AlGhaithy and Alsaigh applied to the Ontario Divisional Court for judicial review of the University Senate Appeal Committee decisions. These applications were also rejected.2
Following the Divisional Court's dismissal of the applications, the three residents sued the University of Ottawa and faculty members involved in their academic assessment. They claimed over $150 million in damages for breach of contract, negligence, breach of fiduciary duty, conspiracy, defamation and violation of their rights under ss. 2 and 15 of the Canadian Charter of Rights and Freedoms.
In April 2013, a motion judge granted the defendants' summary judgment motion to dismiss the action. He held that the residents' multiple claims were merely "window dressing" and that they were indirectly attempting to appeal the university's academic decisions. He also held that, if it proceeded, the residents' civil suit would require a court to revisit determinations of fact already made in the academic appeal and judicial review process. As such, the lawsuit was an abuse of process.
In a later decision on costs, the judge ordered the residents to pay $90,000 in costs to the defendants, in part because the residents had alleged intentional wrongdoing by faculty members in their civil claim.3
The Court of Appeal's decision
On appeal, the residents argued that the Supreme Court of Canada adopted a new test for abuse of process in its recent decision in Penner v Niagara (Regional Police Services Board).4 They also contended that, if academic discipline proceedings can preclude a subsequent civil suit, students would not have any incentive to participate in such proceedings.
With respect to the first argument, the Court of Appeal noted Penner dealt with issue estoppel, not abuse of process. Even if Penner applied, however, the fairness considerations identified by the Supreme Court in that case did not arise in the residents' claim:
[T]he whole purpose of the University academic discipline procedure in which the appellants engaged was to determine the academic consequences for the appellant and the ramifications for their careers as specialist physicians. The process and remedies it provides directly affected the appellants. In our view, there is no basis upon which one could say in these circumstances that it would be unfair to use the results of the discipline proceedings to preclude a civil suit in which the same conduct is in issue, even though a different remedy is now being sought.5
The Court of Appeal also rejected the residents' argument that barring the civil suit would discourage students from pursuing academic appeals:
The incentive to participate is to be able to carry on with one's studies and to obtain academic standing, in this case, as specialist physicians. That is the primary goal of a student in an academic program, especially a professional program leading to a professional degree and ultimately to a professional certification. Seeking damages from the University to obtain redress for complaints about alleged inappropriate treatment would be only a secondary, fall-back goal.6
The Court of Appeal accordingly dismissed the appeal and awarded the defendants a further $15,000 in costs.
Implications of the decision
The Ontario Court of Appeal's decision in Residents' Action confirms that courts should dismiss as an abuse of process claims that are indirect challenges to academic decisions by universities. This decision should discourage students from attempting to challenge academic decisions through civil suits. Not only were the residents unsuccessful in their claim but they now face total cost awards of $105,000.
The University of Ottawa and the individual defendants in this action were represented by Norton Rose Fulbright.
1 AlGhaithy, Aba-Alkhail and Alsaigh v. University of Ottawa and others, 2013 ONCA 633, aff'g 2013 ONSC 2127 (the "Residents' Action").
2 AlGhaithy v University of Ottawa, 2012 ONSC 142 and Alsaigh v University of Ottawa, 2012 ONSC 2313. The residents' subsequent motions for leave to appeal the Divisional Court's judgments to the Court of Appeal (and in Dr. AlGhaithy's case, to the Supreme Court of Canada) were also unsuccessful. All three residents also filed human rights complaints with the Human Rights Tribunal of Ontario alleging discrimination on the basis of race and national or ethnic origin during their training. The human rights complaints were dismissed pursuant to s. 34(11) of the Human Rights Code once the residents commenced the civil action.
3 The residents have filed a motion seeking leave to appeal this cost award.
4 2013 SCC 19.
5 Residents' Action, para. 9.
6 Residents' Action, para. 11.
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